National Consumer Disputes Redressal
Bishakha Ghosal vs Barrackpore Medicare & Recovery Center ... on 11 April, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2519 OF 2018 (Against the Order dated 14/06/2018 in Appeal No. 1096/2015 of the State Commission West Bengal) 1. BISHAKHA GHOSAL W/O. CHANDRA SEKHAR GHOSAL R/O. NEW PLAZA, APARTMENT FLAT NO. 1/A, P.S. TITAGARH, DISTRICT-NORTH 24 PARGANAS WEST BENGAL ...........Petitioner(s) Versus 1. BARRACKPORE MEDICARE & RECOVERY CENTER LTD. & ANR. HAVING ADDRESS AT 6/6, B.T. ROAD, TALPUKUR, DISTRICT- NORTH 24 PARGANAS WEST BENGAL 2. DR. NIRMALYA BASU M.S. (ORTH) HAVING ADDRESS AT 6/6, B.T. ROAD, TALPUKUR DISTRICT- NORTH 24 PARGANAS WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Kajal Kr. Chatterjee, Advocate For the Respondent : Mr. Subhrendu Halder, Advocate Mr. Abhik Das, Advocate Mr. Soumen Mondal, Advocate Dated : 11 Apr 2019 ORDER DR. S. M. KANTIKAR, MEMBER This order shall decide both the revision petitions. The facts are taken from revision petition No. 2518 of 2018.
1. Briefly stated the facts of the case are that the complainant met with a motorbike road accident on 09.08.2013 and she was taken to Barrackpore Medicare & Recovery Centre Ltd. - the opposite party no. 2 (for short, "nursing home-BMRC"). Dr. Nirmalya Basu (opposite party no. 1), an Orthopaedic Surgeon examined the patient and x-ray showed fracture of shaft of humerus -left side. On 11.08.2013, the opposite party no. 1 performed surgery i.e. Open Reduction Internal Fixation (ORIF) with Dynamic Compression Plate (DCP). Thereafter, due to radial nerve compression, patient suffered some neural problem and it was diagnosed as 'Axonal type' of neuropathy (sensory + motor) of left radial nerve. Therefore, on 14.08.2013 to release the compression of radial nerve between soft tissue and the plate, second operation was performed by opposite party no. 1 and plate was re-positioned. Even then, patient had continuous pain in his left hand and there was serosanguinaous discharge with obnoxious smell. Despite regular dressing, there was no satisfactory result. On 30.08.2013, the patient approached the treating doctor, who advised to use shoulder immobilizer and dynamic cock up splint. Patient was also advised for active and passive finger exercise but due to finger swelling, the patient was unable to move his fingers. The patient was feeling current like sensation, therefore, approached opposite party no. 1 04.10.2013. The X-ray showed loosening of the screw. The opposite party no. 1 advised for Faradic Nerve stimulation of radial nerve and assured that the nerve recovery would be complete within short time. On 08.11.2013 another X-ray was taken which revealed Osteocoolysis. Therefore, the opposite party No. 1 referred the patient to Dr. S. Mishra at Columbia Asia Hospital for further treatment wherein the diagnosis of 'infected non-union of fracture shaft humerus was made and patient underwent treatment from Dr. Mishra in two stages to avoid total damage to her hand.
2. Being aggrieved by the deficiency in service during treatment from opposite party no. 1, the complainant filed a complaint before the District Forum claiming compensation of Rs.13,54,064.45 from the opposite parties.
3. The opposite party no. 1 resisted the complaint by denying all the allegations. There was no deficiency on his part and prayed for dismissal of the complaint. The opposite party no. 2 did not file any written version.
4. The District Forum, vide its Order dated 28.07.2015, allowed the complaint and directed the opposite parties to pay compensation of Rs.4 lakhs alongwith the litigation cost of Rs. 25,000/- jointly and severely to the complainant within one month from the date of the Order, failing which the opposite parties shall have to pay Rs. 200/- per day till realisation.
5. Being aggrieved, both the opposite parties filed two separate appeals before the State Commission. The State Commission after appraisal of evidence, allowed both the appeals and the Order of the District Forum was set aside and dismissed the complaint.
6. Being aggrieved by the impugned Order, the petitioner - complainant filed these two revision petitions.
7. We have heard the learned counsels for both the parties and perused the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. Admittedly the complainant - patient due to road traffic accident suffered severe injury and fracture to her left hand - shaft humerus. It was a compound fracture i.e. fracture of bone with injury to soft tissue and muscle also. The opposite party doctor after initial treatment performed surgery (ORIF with DCP of left radius). However, complainant has no grouse against the operation. On perusal of medical record, we note that there was left radial nerve compression because of the plate (DCP) and soft tissue. The opposite party No. 1 performed second surgery for decompression to release pressure on the radial nerve. However, the nerve was intact and there was no damage. Thereafter, the OP-1 re-examined the patient on 08.11.2013 and found that the fixed plate was progressively getting loosened. It was an indication of deep seated infection. Therefore, patient was referred to an expert Dr. Soumitra Mishra, who diagnosed it as infected non-union of fracture. It should be borne in mind that, mere infection during the post-operative period is not only due to negligence of the treating doctor. There are several factors for infection of surgical wound. It is pertinent to note that after surgery and during entire treatment, patient was put on regular dressing and antibiotics; despite that there was infection. Moreover, as per the evidence on record, opposite party no. 2 hospital is having all diagnostic facilities and competent doctors.
9. To know more about Radial Nerve Palsy, we have gone through the medical text from the Campbell's Operative Orthopedics (11th edition). Accordingly it is that:
"The radial nerve is the nerve most frequently injured with fractures of the humeral shaft because of its spiral course across the back of the midshaft of the bone and its relatively fixed position in the distal arm as it penetrates the lateral intermuscular septum anteriorly. Usually the radial nerve injury is a neurapraxia, with recovery rates of 100% in low-energy injuries and 33% in high energy injuries."
10. At this instance, we place reliance upon the decision of the Hon'ble Supreme Court in Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, wherein Hon'ble Supreme Court held that, "in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession."
Similarly, in the case, Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. 2 AIR 1969 SC 128, the Hon'ble Supreme Court observed that:
"The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."
11. On the basis of foregoing discussion, in our view, it was low-energy injury causing neurapraxia not a radial nerve palsy. The treating doctor (OP-1) was an orthopedic surgeon, had performed his duty to the best of his abilities and with the due care and as per standard procedure. In our view, the complainant failed to prove negligence on the part of the opposite party hospital and the treating doctor.
12. Based on the foregoing discussion, we do not find any material irregularity, impropriety or jurisdictional error in the impugned order of the State Commission which may call for interference in exercise of revisional jurisdiction. Therefore, the revision petitions have no merit. Hence, dismissed.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER